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tv   MSNBC Live With Craig Melvin  MSNBC  March 21, 2017 10:00am-11:01am PDT

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female applicants and not male applicants about family plans? >> senator, those are not my words, and i would never have said them. >> i didn't say that. i asked if you agreed with the statement? >> i'm telling you i don't. >> thank you. in wayne versus kansas state it involved a cancer-stricken professor. you wrote an opinion that noted eeoc guidance demands deference "only to the extent its reasoning proves persuasive." eooc's enforcement guidance on pregnancy discrimination employers should not make inquiries into whether an applicant or employee intends to become pregnant. the eeoc requires evidence of pregnancy discrimination where the employer subsequently makes an unfavorable job decision affecting a pregnant worker." do you find this instruction to be persuasive? >> senator there's a lot of words there and if you're asking me to parse them out and give you a legal opinion and i fear that you may be, i respectfully
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say i'd have to study it in the course of a judicial case. >> let me bring it down to the operative words, whether employees should or should not make inquiries to whether an applicant or employee intends to become pregnant. >> senator, i need to -- sounds like you're asking me about a case or controversy and with all respect when we come to cases and controversies, a good judge will listen. socrates said the first virtue of who could judge is to listen courteously and decide impartially. >> i think you know why i'm asking these questions. >> this one i don't. >> the reason i'm asking is because about your views on pregnancy, and women in the workplace, two of your former students from legal ethics and professionalism class last spring wrote to this committee to say how troubled they were about your comments in an april 19th class, it was a gender targeted discussion regarding the hardship to employers of having female employees who may use maternity benefits. one of these students signed her name publicly to her letter which is a pretty brave thing to do.
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that student didn't just make this issue up after you were nominated. last night, the university of colorado law school confirmed that she had voiced her concerns with administrators shortly after your april 19th class and also confirmed that the administrators told her they would raise this matter with you, though they never actually did so. en we recei information like this which raises questions out your views and conduct on important issues, i want to get to the bottom of it. i mention that to you yesterday in my opening statement that i would be bringing this up so i just want to ask you to confirm, did you ask your students in class that day to raise their hands if they knew of a woman who had taken maternity benefits from a company and then left the company after having a baby? >> no, senator, and i'd be delighted to actually clear this up. >> please. >> because the first i heard of this was the night before my confirmation hearing. i've been teaching legal ethics at the university of colorado for seven or eight years. it's been a great honor and pleasure. i teach from a standard textbook
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that every professor, well i don't know if every professor, none of our professors and elsewhere use, a number use, it's excellent textbook. one of the chapters in the book confronts lawyers with some harsh realities that they're about to face when they enter the practice of law. as you know, and i know, we have an unhappy and unhealthy profession. in a lot of ways. lawyers commit suicide at rates far higher than the population. alcoholism, divorce, depression are also extremely high rates. young lawyers also face the problem of having enormous debts when they leave law school. and that's a huge inhibition for them to be able to do public service, like you and i are so privileged to be able to do. we talk about those things. there is one problem in the book, and i'd be happy to share with you the book and the
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teacher's manual so you can see for yourself, senator, which asks the question, and it's directed to young women, because sadly this is reality they sometimes face. the problem is this. suppose an older partner woman at the firm that you're interviewing at asks you if you intend to become pregnant soon. what are your choices as a young person? you can say yes, tell the truth, in the hypothetical, say it's true and not get the job. and not be able to pay your debts. you can lie, maybe get the job, you can say no. that's a choice, too. it's a hard choice. or you can push back in some way, shape or for ande talk about the pros and the cons in this socratic dialogue they can think through themselves how they might answer that very difficult question and senator, i ask for a show of hands, not
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about the question you asked, but about the following question -- and i ask it of everybody, how many of you have had questions like this asked of you in the employment environment? an inappropriate question about your family planning, and i am shocked every year, senator, how many young women raise their hand. it's disturbing to me. i knew this stuff happened when my mom was a young practicing lawyer, graduating law school in the 1960s. at age 20 she had to wait for a year to take the bar. i knew it happened with justice o'connor, couldn't get a job as a lawyer when she graduated from stanford law school and had to women, not men, raising their hand in that question. thank you for the opportunity to clarify that, senator. >> and i wanted to give you that opportunity. i told you yesterday we'd get to the bottom of this and i'd give you your chance to tell your
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side of the story. you made a point yesterday of talking about your four heroes and one of them was justice jackson and i went back to look at some of his cases, just know of him, i don't know much about him, and i found his dissent in koramatsu, and this was a case which i thought was fascinating because his dissent was not that long but it had an impact, it was profound. the question of course was, the military orders and the united states or the treatment of japanese-americans, fred koramatsu was caught up in it and basically told he had no choice, he had to go off the internment camp and that whole medical, pardon me, military directive was challenged in this case, and it was interesting that it was upheld on an opinion by justice black but among the s dissenters was robert jackson in
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his dissent, he said some things that i thought were pretty interesting and i'd like to ask your thoughts on them. he gave a constitutional condemnation of what he considered the military's racist exclusion orders, but what he articulated in the second half of the opinion is what i like to ask you about. he really raised a question about the role of the courts, even the supreme court, in time of war, in time of fear, when it came to military orders, and whether the courts and the constitution were up to it. that was really an amazing challenge to us as a nation, a nation of laws. so what do you think about the role of the court challenging the military or the commander in chief in time of war and as senator graham remined us, many
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people believe we are at war and i believe you confirm that as well. are we up to it in terms of constitutional protection and the role of the court? >> we'd better be. senator, a wise old judge kind of like judge johnson, you're going to hear from, going to come talk to you, from colorado, a hero of mine, known me since i was a tot. he taught me that the test of the rule of law is whether the government can lose in its own courts and accept the judgment of those courts. that doesn't happen everywhere else around the world. we take it for granted in this country. it's a remarkable blessing from our forefathers, and it is a daunting prospect as a judge to have to carry that baton, and to do it on the supreme court of the united states is humbling, that prospect, to me and i
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pledge to you that i will do everything i can to uphold the constitution and the laws as a go judge should at all times. >> let me ask you about another case that's been referred to, yesterday many of us left al madden sitting in that truck, it was about pc in the morning on i-88 west of chicago, i've driven it many times, it was in january, the temperature in the cab was 14 degrees below zero. he had no heater in his cab. his dispatcher told him sit tight, you either drag that trailer with the frozen brakes behind you out onto that highway or you wait, and so he waited for hours, and finally, feeling numb and life-threatening, he unhitched the trailer and took his tractor to a place for some gas and to warm up and then returned to it when they fixed it. seven different judges took a look at those facts and came down on al madden's side, except
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for one, you. why? >> senator, this is one of those you take home at night. the law said that the man is protected and can't be fired if he refuses to operate an unsafe vehicle. the facts of the case, at least as i understood them, was that mr. madden chose to operate his vehicle, to drive away, and therefore, wasn'te chose to operate. now senator -- >> you know the distinction, because the dispatch told him don't leave unless you drag that trailer. >> right. >> and he said i can't do it. the brakes are frozen and they went out there at 14 below and unhitched that trailer, he thought because he was in danger and when you wrote your dissent in this, you said it was an unpleasant option for him t wait for the repairman to arr e
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arrive. >> i said more than that, senator. >> i know you did. you went on to say that you thought that the statute which we thought protected him you said especially ends in the ephemeral and generic phrase "health and safety" you went on to write, after all, what under the sun at least at some level of generality doesn't relate to health and safety? we had a pretty clear legislative intent for a driver who feels he's in danger of his life perhaps, and you dismiss it. the only one of seven judges and say no. you're fired, buddy, and you know, he was blackballed from trucking because of that, never got a chance to drive a truck again. >> senator, all i can tell you is my job is to apply the law, you're right. the law as written said that he would be protected if he refused to operate and i think by any
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plain understanding, he operated the vehicle. and if congress wishes to revise the law -- i wrote this -- i said it was an unkind decision. it may have been a wrong decision, a bad decision, but my job isn't to write the law, senator, it's to apply the law and if congress passes a law saying a trucker in those circumstances gets to choose how to operate his vehicle, i will be the first one in line to enforce it. i've been stuck on the highway in wyoming in a snowstorm. i know what's involved. i don't make light of it. i take it seriously, but senator, this gets back to what my job is and what it isn't. if we're going to pick and choose cases out of 2,700, i can point you to so many in which i have found for the plaintiff in an employment action or confirmed the finding of an agency of some sort for a worker or otherwise. i point you for example w.d.
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sports or casey energy west, crane, simpson versus ceu, it's just a few that come to mind that i've scratched down here on a piece of paper. >> judge, we up here are held accountable for our votes, and i've been in congress for a while, and i've cast a lot of them. some of them i'm not very proud of. i wish i could do it all over again. i make mistakes, but your accountability is for your decisions, as our accountability is for our votes, and if we're picking and choosing, it's to try to get to the heart of who you are, and what you will be if you're given a chance to serve on the supreme court. i'd like to go, if i can, for just a moment to this famous case which you and i discussed at length, hobby lobby. lengthy decision with trying to make a corporation into a person. boy, did the court spend a lot of time twisting and turning and
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trying to find some way to take rifra and saying congress really meant corporations like hobby lobby, when they said "person." it was dictiony law and so many different aspects of this. what i was troubled by and i asked you then and i'll ask you again, when we are setting out as that court did to protect the religious liberties and freedom of the green family, the corporate owners, and their religious belief about what's right and wrong when it comes to family planning, and the court says that's what we'll decide it, what the green family decides when it comes to health insurance, you made a decision that thousands of their employees would not have protection of their religious beliefs, and their religious choices, when it came to family planning. you chosed the door to the options and their health insurance and by taking your position to the next step, to all those who work for
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closed-end corporations in america, 60 million people had their health insurance and their family planning and their religious belief denigrated, downsized to the corporate religious belief, whatever that is. did you stop and think when you were doing, making this decision about the impact it would have on the thousands and thousands if not millions of employees, if you left it up to the owner of the company to say as you told me, there is some kind of family planning i like and some i don't like. >> senator, i take every case that comes before me very seriously. i take the responsibility entrusted in me inthink if you and judges of the tenth circuit am i a serious and careful judge, i think you'll hearhat i am. i'm delighted to have an
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opportunity to talk toou about that decision. as you know, in rifra the reyinlg lus freedom restoration act congress was dissafed under the first amendment to maryland justice scalia said any neutral law of general applicability is fine. that's, doesn't offend the first amendment. so laws banning the use of peyote, native americans, tough luck, even though it's essential to their religious exercise, for example. this congress decided that that was insufficient protection for religion, and in a bill sponsored by senator hatch, senator kennedy, senator schumer, when he was in the house, wrote a very, very strict law, and it says that any sincerely held religious belief
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cannot be abridged by the government without a compelling reason and even then, it has to meet, it has to be narrowly tailorred, strict jute know, the highest legal standard known in american law, okay? i've applied that same law, rifra and ralupa, companion statutes to muslim prisoners in oklahoma, who seek halam meals, to native americans who wish to use an existing sweat lodge in wyoming and little sisters of the poor, hobby lobby, came to court and said we deserve protections, too, we're a small family-held company, small number of people who own it, i mean. they exhibit their religious affiliations openly in their business, they pipe in christian music, they refuse to sell alcohol or things that hold alcohol. they close on sundays, so it
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costs them a lot. and they came to court and said we're entitled to protection, too, under that law. it was a tough case. we looked at the law, and it says any person with a sincerely held religious belief is basically protected, except for strict scrutiny. what does person mean in that statute? congress didn't define the term. so what does a judge do? a judge goes to the dictionary act as you alluded to senator, the dictionary act is an act prescribed by congress that defines terms when they aren't otherwise defined. that's what a good judge does. it doesn't make it up. it goes to the dictionary act, and the dictionary act congress is defined person to include corporation. so you can't rule out the possibility that some companies can exercise religion, and of course, we know churches are often incorporated and we know nonprofits like little sisters or hospitals can practice religion. in fact the government in that
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case conceded that nonprofit corporations can exercise religion, conceded that. so that's the case we come to the strict scrutiny side. >> i don't want to cut you off. i'm going to get in big trouble with this. >> i think i would want you to continue your answering his question. >> i'm sorry, mr. chairman. i apologize. >> i want you to continue. >> and so then you've got the religion, the first half of the test met, right? so then you go to the second half, does the government have a compelling interest in the aca and providing contraceptive care? the supreme court of the united states said we assume yes, we take that as given. and then the question becomes is it narrowly tailorred to require the green family to provide it? and the answer there the supreme court reached and precedent binding on us now, and we reached in anticipation is no,
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that it wasn't as strictly tailorred as it could be because the government provided different accommodations to churches and other religious entities. the greens didn't want to have to write down and sign something saying that they were permitting the use of devices they thought violated their religious beliefs, and the government accommodated that with respect to other religious entities, and couldn't provide an explanation why it couldn't do the same thing here. that's the definition of strict scrutiny. now, congress can change the law. it can go back to smith versus maryland if it wants to, eliminate rifra all together. it could say that only natural persons have rights under rifra. it could lower the test on strict scrutiny to a lower degree of review, if it wished and as all of those options available and if we got it wrong, i'm sorry,ut we did our
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level best and we were affirmed by the united states supreme court and it's a dialogue like any statutory dialogue between congress and the courts. >> thank you, judge and thank you, mr. chairman. >> senator from texas. >> thank you, mr. chairman. before i start, yesterday my statement i mentioned an op-ed by, in the new york times written by neil katayal, my apologize if i butchered his name. with a name like cornyn i'm used to it. >> i get a lot worse. got a lot worse. >> the title why i should back kneel gorsuch. i consent this be concluded in the record. >> without objection all documents will be included. >> so judge, i have a pretty basic question for you. does a good judge decide who should win and then work backward to try to justify the outcome? >> that's the easiest question of the day, senator, thank you.
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no. and i have to correct myself, senator durbin,' not smith versus maryland. that's third party doctrine, it's employment division versus smith we're talking about. i apologize to you for that. >> well, i'm glad to hear you answered my question the way you did. i expected that you would but that seems to be implied in some of the questioning that you're getting. you look through the litigants are, and who you would like to win, the little guy as we've heard and i'll get to that again in a minute, and then go back and try to justify the outcome, but i agree with you, that's not what good judges do. i want to return briefly to, i know something you've talked to senator feinstein and senator durbin abo again to giveou every opportunity to make sure this is crystal clear. i remember back when george w. bush was president of the united states, there was a practice of signing statements that went along with his signing
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legislation into law, that was criticized by some of our friends on the other side of the aisle, as somehow undermining congress's intent or the president's own signature enacting a bill into law and so senator feinstein raised the question of back when you worked with senator mccain, senator graham on the detaining treatment act, the signing statement that the president ultimately issued that went along with his signing that legislation into law. did i characterize that correctly? >> i think so, senator, to the best of my recollection. >> okay, so the question is this, judge. there were some in the administration who wanted a single statement basically that the president was signing the law, but if could you find an argument that the president didn't have to pay attention to the law, then, or perhaps had authorities that weren't otherwise laid out in the statute, that the president could disregard what congress had passed, and what the
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president had signed into law. on the other hand, there were those like you, in an email, who laid out the case for more expansive signing statement. you made the point that on the foreign public relations front, allowing us to speak about this development positively rather than grudgingly would be helpful. "while we appreciate the appropriate limitations and usefulness of legislative history, it would be helpful" as this provision is litigated, which is inevitably would be, to have a statement of policy from the executive branch on why this law was enacted, and third, that you said it would help inoculate against the potential of having the administration criticized in the future for not making sufficient changes when in fact, all the bill did was to codify existing law with regard to interrogation practices.
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senator mccain made that comment. so you at least, i guess i hate to put it in these terms, you lost that argument in a sense, because the vice president's lawyer prevailed in that argument, and they had a single statement in the signing statement basically making reference to, well, here i'll just read it, so the executive branch shall construe title ten of the act in a manner consistent with the constitutional authority of the unitary executive branch and its commander in chief and consistent with the constitutional limitations on judicial power. so that's the statement in the signing statement that you sought to make more expansive and accommodate the three concerns that you raised. isn't that correct. >> senator your understanding of events is a lot fresher than mine, but i sitting here can't disagree with anything you've said. >> well and i understand this is, what, 12 years ago.
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>> something lik >> you were asked questions initially by senator feinstein without the benefit of actually be able to refresh your memory from reading the emails, but i think we've covered that enough, i hope and lay that to rest. i want to talk about the little g guy. in these confirmation hearings sometimes very complicated and complex issues are dealt with in a rather simplistic and misleading sort of way. but first of all, iant to talk to you a little bit about an article that you wrote in the judicature magazine called "access to affordable justice." i know as somebody who has actually practiced law in the trenches, as you said you have, and you did, you were concerned and write in this article about
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your concerns for access to justice for the little guys, and little gals, i guess, and you point out that litigation becomes so expensive and so time consuming that essentially it was out of reach to resolve legitimate disputeses awas out of reach for people of modest means. could you expand on those concerns that you raise in that article? >> i really opportunity and venue to be talking about these things, because these i care about and i can talk about as a judge. i wrote that article in conjunction with some input from a lot of wonderful people, so i can't take total credit for it and i thanked them and you can see who i thank. my point there was three-fold, starting with the fact that too
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few people can that's a fact. too few people can get lawyers to help them with their problem. i teach young folks law, who leave law school unable to afford their own services. think about that. think about that. and hundreds of thousands of dollars in debt. how do they go be main street lawyers? how do they help people w nd legal servic? and i pointed to three potential sources of problems where we lawyers should maybe look internally, rather than blame others for the problem. there's plenty of blame to go around. i'm not a big blame guy, but i am a look inside guy. now what do i see in our profession? there are three things i pointed to in that article. first our own ethical rules. it's a very unusual profession where we're allowed to regulate ourselves.
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it's quite an extraordinary privilege. usually it's the legislature, right? but lawyers basically regulate themselves and do all of our ethical rules necessarily help our clients or do some of them help us more than they help our clients? and i point to some that for instance regarding the unauthorized practice of law, why is it you have to be a lawyer to help parents with disabled children in administrative proceedings to seek relief under i.d.e.a. was an example i pointed to. why is it every time certain companies that provide online legal services for basic things get sued every time they move into a new state? why is it i can go to walmart and get my hair, teeth, eyes taken care of, but i can't get a landlord/tennant contract drawn up? those are all results of our ethical rules and i'm not sure
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whether they're worth the price that we pay for them. it's estimated i've heard, i can't verify it, that our ethical rules result in a $10 billion a year surplus to lawyers and clients every year. that was one. number two was our own rules of procedure which yield cases like the one we talked about that took 25 years to resolve. that's wrg. that's wrong. we should be able to resolve cases in less time that it takes for my law clerks to be born, raised and get through law school. and the third thing i pointed to was our legal educational system, where we have three years of post graduate education for anybody who wants anything to do with lawyering. the best lawyer came from your state senator durbin, and he didn't ever go to law school. and he always said the best way
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to become a lawyer, read the books. still true. and other countries around the world don't have three years of post graduate legal education. now this is where justices disa. he thought three years was necessary for everybody. i'm not convinced. in england, where i studied, you could become a lawyer through three years of an undergraduate degree, or one year as a post graduate degree, all followed by a lot of on the job practical training. and i wonder whether all that debt is worth it, or whether it induces people to pick jobs that they have to pick to pay their debt rather than to deserserve people they like to serve. those are the problems i talk about in this article. >> you make this statement that the rules sometimes yield more nearly the opposite of their intended result. expensive and painfully slow
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litigation that itself is a form of injustice. can you think about, can you think of many things more unjust for people of modest means in america than being denied access to the courts, because our system is so expensive, it' so time couming, they simply can't afford it? i think is a problem when 80% of the american college of trial lawyers, best lawyers in the country arguably, they certainly think they are -- sorry -- when 80% of them say that good claims are priced out of court and 70% of them say that cases are settled based on the litigation costs rather than the merits of the litigation, that's a problem both ways and these are lawyers who operate on both sides of the v. >> so basically you either have to be able to pay a lawyer's hourly rate or you have to agree to some contingent fee
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arrangement and lawyers aren't going to take a contingent fee case unless there is some reasonable prospect for their being compensated out of any settlement and judgment ordinarily. >> ordinarily. some do. what we're seeing today though, senator, is an explosion of pro se, that is filings by the person without a lawyer, and that's what i was trying to address there. i do think access to justice in large part means access to a lawyer. lawyers make a difference. i believe that firmly. my grandpa showed that to me. what a difference a lawyer can make in a life. >> judge, let me ask you about another case involving the little guy. this was an immigration case that you'll recall was a conflict between two provisions of immigration law, gutierrez brusela versus lynch. i hope i pronounced that approximately correctly.
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do you recall the case? >> i do and we talked a little bit about with t with senator feinste feinstein. >> i'm happy to hear it again because i believe i heard senator feinstein maybe i'm mistaken there or maybe one of our other colleagues, i apologize if i misstated that, that talked about this deference to administrative agencies as being necessary and fundamental doctrine, but can you explain how that ended up hurting the little guy in that case? >> so senator, in that case, there were two statutes that this undocumented immigrant faced. he was trying to remain in the country. one statute said that he had the right to apply for immediate discretionary relief from the attorney general. no promises about the outcome, but he could at least apply t the attorney general. the other statute seemed to suggest that he had to wait ten years out of the country before he could seek relief. now i'm not criticizing
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congress's handiwork here but those two statutes appeared a little in conflict, so statute the man had a right to apply for immediate discretionary relief and didn't have to wait ten years out of the country. and then some number of years later, i can't remember whether it was three or four, i want to say, don't hold me to that, the board of immigration appeals in its infinite wisdom comes back and says we're wrong. court of appeals got it wr okay. it says though that we're not just wrong but we're wrong receip retroactively so it's as if this decision never existed to this man who relied on our holding to apply for immediate discretionary relief was denied the opportunity to do so, and told now he had to go start his ten-year waiting period.
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now, instead of ten years it's the equivalent of what, 13 or 14 years, and to me, that just seemed like he had the rug pulled out from underneath him and i think a pern in this country should be able to rely on the law as it is, and it's a matter of due process and fair notice, when he is told that that's the law, he should be able to rely on it, and i also think it's a separation of powers question, when, with all respect, a bureaucracy can overrule neutral dispassionate judges on the meaning of a law based on their political whims at the moment, that's a separation of powers issue i think that may be an equal protection issue, too, because a political branch can single out people for disfavor. judges are sworn to treat every person equally in that vermont.
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>> in this case the little guy was actually relying upon a judgment of a court of law -- >> yes, he was. >> -- and effectively or the attempt was to overrule that court decision by an administrative regulation or interpretation. is that correct? >> yes. >> and if you had applied the chevron test we've talked about that a little bit, said that if it's am big gubiguous and the a interpretation is a legal one, then you're obligated to enforce the agency decision rather than the judgment of the court of law. >> senator, we did apply the chevron case faithfully because we had to, and i also wrote separately to ask questions because i'm a circuit judge, and you know, i never dreamt i'd be sitting here, i can tell you that, when i wrote this opinion, and part of my job as a circuit
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judge is to tee up questions from my bosses, and instruct me here's the question, is this result consistent with the administrative procedures act? which says the section 706 that we're supposed to defer to agencies when it comes to questions of fact, to the scientists, to the biologists, but when it comes to questions of law, apa section 706 entrusts courts to decide what the law is, and is this consistent with our valueless of equal protection due process and separationf powers. those are questions i rais, senator, to tee up from my bosses. >> so you actually applied the chevron test in your judgment, but wrote a separate opinion raising these questions perhaps for review by the supreme court? >> i follow precedent. >> sounds like even when you disagree with the outcome. >> well, we got to an outcome we could live with there, too, senator, and applied chevron,
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but i did raise this in a separate concurrence to raise these questions, and i don't know how i'd rule as far as supreme court justice on the question. i got to be honest with you, senator cornyn, because i'd want to do what a good judge does, keep an open mind, read the briefs and i could change my mind. i think you're my old boss steve sentel when he clerked for him he wrote a panel opinion by one way the beginning of the year and by the end of the year en banc for the full court reversing his own panel opinion. some people say that's a man who doesn't have a spine. something like that. i say that's a judge with an open mind. >> well, speaking for myself, the idea that agencies, unelected bureaucrats, have the latitude to interpret their own
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legal authorities, if the congress is ambiguous in their interpretation deemed reasonable, is a troubling concept, because if there's one part of the federal government that is completely out of control of the regular voters in this country, it is the bureaucrats who don't stand for election, like members of congress do, and so i hope it's something that we legislatively can look at as a way to help rein in the regulaty state, which in my humble opinion has gotten out of control. let me talk to you about the establishment clause if i may. i firmly believe the supreme court has lost its way in limiting religious expression in this country. that's my opinion, and part of my conviction stems from an experience i had 20 years ago when i had a chance to argue
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before the united states supreme court. i had that chance two occasions when i was attorney general of texas. this case was called the santa fe independent school district versus texas around galveston had a practice before football games of inviting a student to offer a prayer or a poem or maybe just an inspirational thought before the football game. they got sued by the aclu, and that case ended up going to the united states supreme court, where the held by a vote of 6-3 that student-led prayer was unconstitutional. that led the late chief justice rehnquist t make the statement that, rather than neutrality
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toward religious expression, that the court now exhibits "hostility to all things religious in public life." we don't seem to have many limits on expressions of sex, violence, or crime in the public square, but we do seem to have compuctions about religious expression in the public square, and i wonder if you could just talk to us a little bit about your views, not pre-judging cases, but the sorts of considerations that you believe the founders, for example, had in mind, and of course as i'm asking you the question, i'm already thinking through my head here, i'm not asking you to pre-judge any future case, so let me give you the latitude to answer the question any way you deem fit, but i'd have to tell you, i'm very troubled by what chief justice rehnquist called
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"hostility to religious expression in the public square" and what that's done to change our country, not in a good way. >> senator, i appreciate your thoughts and it's a very difficult area doctrinally, because you have two commands in the first amendment that are relevant here. you have the free exercise clause on the one hand, and you have the establishment clause on the other. so you're guaranteed free exercise of religion, and you're also guaranteed no establishment of religion. the two commands are inntioned because to the extent weccomte free expression, at some point, the accommodation can be so great that someone's going to stand up and say you've established or you passed a law respecting the establishment of and it's intention and as in so many
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areas of law, judges have to mediate two competing and important values that our society holds dear. the court has struggled in establishment clause jurisprudence to provide a consistent and comprehensive test. i think that's a fair statement, that the current dominant test is called a the intent is to establish religion, promote religion, whether the effect is to help advance religion and whether there's too muchening tanglement between state and religi religion. eight proved a difficu it's proved a difficult test according to six justices at least and expressed dissatisfaction with this test but never at the same time.
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so lemon endures, and academics have thoughts about various options and alternatives i know, and the justices themselves have expressed various insundery ideas. it's a bit of a challenge in this area. we struggle a lot. >> just as one citizen to another, let me tell you, i think it's a morass, and unfortunately the result is like chief justice rehnquist said, hostility to religious expression in the public square, and i think our country is poorer for it. let me, my final topic at least for this round, let me ask you a little bit about originalism and texturalism. our mutual friend, brian garner, mentioned to me that texturalism isn't the same thing as being a strict constructionist. i know we use that phrase at
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least colloquially. >> right. >> some, but if a judge isn't going to be bound by the text of the constitution or the text of the statute, what is a judge going to be bounded by? >> well, senator, i hope it isn't what he had for breakfast, and you know, when i was a lawyer, all i wanted was a judge who put all of his personal things aside, her personal views, and come to the law and the facts in each case fairly, and i do think when we're talking about interpreting the law, there's no better place to start than the text. maybe here i have to blame sister mary rose margaret. she taught me how to read, and she taught me how to diagram a
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sentence. that was under pain of the hot seat paddle, which hung above her desk for all to see. i used to say she could teach a monkey how to read. i think she did. me. and i think that's where we want to start for a couple of reasons, with the text of the law. first, we go back to the due process considerations, the fair notice considerations we spoke of earlier. before i put a person in prison, before i deny someone of their liberty or property, i want to be very sure that i can look them square in the eye and say you should have known. you were on notice that the law prohibited that what you're doing. i don't want to have him say how am i supposed to tell? i need an army of lawyers to figure that out. some people can afford armies of lawyers. most americans can't.
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it's a matter of fair notice and due process. and the other part again is separation of powers considerations. if i start importing my feelings, if i treat statutes or laws as workshop inkblot tests, i've usurped your role. i've taken away the right of self-government by the people, for the people. took a jog to the lincoln memorial the other morning before the start of all this, second inaugural address. there it is. believe in gov gosh, is that the, it's the gettysburg astress, isn't it? i read them both, thank you, senator, it's the gettysburg addre address. it's the gettysburg address. >> judge, let me ask you -- >> and -- >> i'm sorry to interrupt you.
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>> no, i am sea or sorry it's my job to do your job. it's a separation of powers. >> what escapes me is if people who argue that somehow judges aren't bound by the text of a statute, it is the text of a statute that congress votes on. so how in the world if it's something else other than the text, that ought to direct the outcome, how could anybody have that kind of fair notice that we depend upon so people can align their fears, consistent with the law? >> right. and it isn't a matter of strict construction. strict construction in my mind sounds like i'm putting my finger on the scale for a particular interpretation, maybe even a pro-government interpretation. i don't see it that way at all. judge should try and reach a fair interpretation, what a reasonable person could have understood the law to mean at the time of his actions. that's a pretty good starting
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place for fair notice and for separation of powers, i think, senator. >> thank you. thank you, judge. >> thank you. >> mr. thank you chairman. let me and nanoconsent to put into the record a letter from over100 groups dated march 14th, 2017 regarding what they describe as judge gorsuch's troubling money and politics record. and a letter from dmos dated march 9th, 2017 urging opposition to judge gorsuch's nomination. and a article titled judge gorsuch has ties to -- >> without objection all three will be entered into the record. >> since we were talking about separation of powers, could you just reflect on whether the
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constraint that an apellate court is obliged to take the findings of fact as lower kourts have found them and can't indulge in its own fact finding or fact making. does that have a separation of powers element to it, in terms of constraining the free range wandersings of a court that can make up its own facts and then go in its own direction? >> i haven't thought about that, senator. >> how about the question presented. should the supreme court, in the question presented, try to keep the question narrow to the case presented so that it's not used an eansive question presented to enable itself to wander throughout the legal land skam beyond the constraints of the case? >> senator, it's generally, as you know, on the fact, the practice of an apellate court
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not to review or overturn the facts of a trial court except in the presence of clear error. >> very rare, yeah. >> that's very -- it is a very important important standard. i hadn't thought about it in separation of powers but it is a very important principle. i was a trial level. >> and the constrapt, does that separation of power tones as well. >> i will give you a similar answer. i don't know about that, but i would say it is an important general practice. sometimes there are exceptions that a court can and should go beyond a question presented but it's pretty rare. usually we stick within -- well, we don't have -- the questions present ready whatever the parties present to us on an intermediate court. they good to choose. we don't get to choose. >> that's part what have separation of powers is about, in terms of constraining the judicial branch to actual cases and controversies -- correct? >> well, we generally refrain from examining arguments that
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haven't been developed or made for risk of improv dent mistakes. >> let me turn to another topic. let's talk for a minute about money. in particular, let's talk about dark money. are you familiar with that term? >> in the loosest sense. >> how would you describe it in the loosest sense just to make sure you and i are on the same wavelength? >> senator, as i understand it, you may be referring to money that's not spent by a candidate or a party in connection with -- >> and where you actually don't know who the true source of the money is. >> okay. >> is that a fair enough definitionor us to -- sure. >> -- agree on? okay. could you let us know first what you know about the campaign that is being run to support your confirmation? there has been a lot of talk about how this is outside of politics and we are above
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politics, but there is a group that is planning to spend $10 million on tv adds in which their own press release describes as a comprehensive campaign of paid advertising, earned media, research, grassroots activity and coalition enterprise all adding up to the most robust operation in the history of confirmation battles. that sounds pretty political to me. and i'm wondering what you know about that. >> i've heard a lot about it, senator, from you, from others. i've heard a lot about it. >> do you know -- what do you know about it? >> i know that there is a lot of money being spent in this by, as i understand it, both sides. >> well, i wouldn't leap to that conclusion at this point. >> okay. i know what i've read. i know what i've heard from friends and family and acquaintances. i know what you are -- what you have just indicated, that there appears to be a lot of money
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being spent. >> do you know who is spending the money? >> senator, i -- i could speculate based on what i've read and what i've heard. but i don't know individuals who are contributing. i don't know that. >> do you know if your friend, mr. an shets is contributing? >> i don't know. >> do you think that it should matter who is contributing? do you think that there is a public interest in the public knowing who is contributing? >> well, senator, i think we've got a long tradition from buckley versus vallejo indicating that this body has robust authority to regulate disclosure. and -- >> yeah, but question is do you think there is a public interest in disclosure of political funds in a democracy?
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that's i don't think a prejudgment. that's just a values proposition. and one of the considerations that you ought to be able to answer without much hesitation. >> senator, what i'm prepared to y is i recognize that as a matter of first amendment interests the supreme court has validated the proposition that disclosure serves important functions in a democracy. at the same time, the supreme court has also acknowledged those disclosure functions can sometimes themselves have unintended consequences as with the naacp case which i know you are familiar with, where you can use disclosure as a weapon to try and silence people. and we have a long history in this -- >> that's hardly the case with respect to the dark money operation that is funding this campaign in your favor, isn't it? >> senator, i'm not prejudging any case. what i am suggesting to you is
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that there are interests here in this area of first amendment disclosure. that's what we're talking about. >> yep. >> in my mind, generally, okay, that are competing. on the one hand in order for informed voters and citizens to make decision the supreme court in buckley has validated the interest that this body has in regulating disclosure. >> and in theory so do the court and citizens united. >> in theory, and citizens united. at the same time the court has also recognized in naacp for example, that disclosure can be used as a weapon to silence voices. and we have a long history of anonymous speech serving valuable functions in this country. >> here's a live example right now. we have this $10 million that is being spent on behalf of your confirmation. do you think for instance that we on this panel ought to know who is behind that?
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and -- well, answer that, and then i'll go on to a related question. >> senator, that's a policy question for this body. >> well, also a question of disclosure. you could ask right now that as a matter of courtesy, as a matter of respect to the process, that anybody who is funding this should declare themselves so that we can evaluate who is behind this effort, right -- >> senator. >> that wouldn't be a policy determination, that would be your values determination. >> it would be a politics question. and i'm not, with a respect, senator, going to get involved in politics. and if this body wishes to pass legislation, that's a political question for this body. and there's ample room for this body to pass disclosure laws for dark money or anything else it wishes to that can be tested in the courts. so, senator, with all respect,
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the ball is in your court. >> do you really think that a supreme court that decided citizens united doesn't get involved in politics? >> senator, i think every justice on the supreme court of the united states is a remarkable person trying their level best to apply the law faithfully. and they -- >> and deeply involved in politics, did they not? they changed the entire political environment, the entire political ecosystem with one decision. you must recognize that. >> senator, it's a a precedent of the united states supreme court. they were thoughtful opinions by justices on both sides. didn't say they weren't thoughtful. i was responding to your response that they don't get involved in politics. what could be more involved in politics than to open this ocean of dark money that flooded into your politics? >> senator, what i mean to suggest is that i believe every
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justice on that court is trying to apply the first amendment and laws of this country faithfully. you may disagree with them. many people do. i understand that. it's hard. judges make half the people unhappy 100% of the time. that's our job description. and people do criticize judges. i understand your criticism. >> this is a little different. >> but i don't question their motives, senator. >> this is a little different. i think you see more like 90% of the public unhappy with citizens united because they see the problem that it caused in our democracy. and in this case it wasn't just a question of two parties and you are going to make one of them angry because you have decided for the other. this is the supreme court operating in its role as the legal constitutional guide to the operation of american

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